Tag Archives: 924(j)

‘Don’t Understand 924(j), Just Do As It Directs,’ SCOTUS Says – Update for June 19, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CONGRESS MAKES NO SENSE, BUT WE’LL FOLLOW THE STATUTE ANYWAY

Anyone who believes that Congress crafts the laws it passes with wisdom and expertise needs look no further than 18 USC § 924, which sets out penalties for gun offenses.

chewbacca230619The penalties in 18 USC § 924(c) for using or carrying a gun during a drug or violent crime must be consecutive to any other sentence. But if the defendant uses the gun to murder someone during the § 924(c) offense, he or she is punished under 18 USC § 924(j).  While § 924(j)’s maximum penalty – death – is more severe than § 924(c)’s maximum of life without parole, § 924(j) has no mandatory minimum and does not require that the sentence be consecutive to any other sentence.

In other words, it seems from a straight reading of the statute that a defendant is better killing some with his gun during a Hobbs Act robbery than he is just keeping the gun in his, which punishes a § 924(c) violation “where death results,” do not.

Remember the Chewbacca defense?  That. Does. Not. Make. Sense.

Last Friday, the Supreme Court shrugged and said it doesn’t matter whether it makes sense or not. Section 924(j) means what it says, or more accurately, means what it doesn’t say.

In Lora v. United States, the high court held that the sentence imposed by § 924(j) may be either consecutive or concurrent (like the sentence for almost all other criminal offenses, as permitted by 18 USC § 3584(a)).

Efraim Lora was convicted of a violation of § 924(j)(1), which penalizes using a gun during a drug or violent crime to “cause the death of a person” where “the killing is a murder.” Efraim’s underlying offense was drug trafficking. At sentencing, the District Court concluded that it lacked discretion to run Efraim’s drug and § 924(j) sentences concurrently because § 924(c)’s requirement for consecutive sentences obviously governs § 924(j) sentences, too.  

violent160620After all, § 924(j) says, “A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm…”  It stands to reason that because subsection (j) refers to subsection (c), then subsection (j) must import subsection (c)’s mandatory consecutive sentences.

The District Court’s conclusion represented an attempt to make subsection (c) and subsection (j) make sense together.  Five circuit courts of appeal have held the same, which only two – the 10th and 11th – had held otherwise.

Last Friday’s Supreme Court opinion changes all of that. Justice Alito, writing for a unanimous court, noted the Government’s complaint that it is “implausible” that “Congress imposed the harsh consecutive-sentence mandate under subsection (c) but not subsection (j), which covers more serious offense conduct.” Yet, his opinion says, “that result is consistent with other design features of the statute.”

The Supremes observed that “Congress plainly chose a different approach to punishment in subsection (j) than in subsection (c). Subsection (c), first enacted in 1968, is full of mandatory penalties… Subsection (j), by contrast, generally eschews mandatory penalties in favor of sentencing flexibility… Even for murder, subsection (j) expressly permits a sentence of ‘any term of years.’ This follows the same pattern as several other provisions enacted alongside subsection (j) in the Federal Death Penalty Act of 1994.”

Justice Alito’s opinion admitted that “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have written subsection (c)’s consecutive-sentence mandate more broadly. It could have placed subsection (j) within subsection (c). But Congress did not do any of these things. And we must implement the design Congress chose.”

massrelease161208So what does this mean for people serving consecutive sentences for § 924(j)? Unless you’re still within a year of conviction – so you can use your § 2255 petition to raise the issue – you probably would have to proceed on a 28 USC § 2241 petition for habeas corpus. The limits of what you can do in a § 2241 petition may be decided in the next two weeks when the Supreme Court decides Jones v. Hendrix. But many courts have held that a § 2241 petition cannot be used like this unless the statutory interpretation means you’re innocent of the offense, not just of the sentence. No doubt, there is plenty of litigation to come on this.

Bloomberg, Justices Clarify Sentencing for Gun-Related Drug Crimes (June 16, 2023)

Lora v. United States, Case No 22-49, 2023 US LEXIS 2548 (June 16, 2023)

– Thomas L. Root

Late is Still Late, But Early Is Not, 4th Circuit Says – Update for May 25, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

2255 THAT WAS TOO EARLY IS NOT TOO LATE, 4TH CIRCUIT SAYS

hobbsact200218Andra Green was convicted of a series of Hobbs Act robberies, attempted robberies and conspiracies, along with several 18 USC § 924(c) offenses for using a gun during a crime of violence. Such § 924(c) offenses come with mandatory consecutive sentences and are thus beloved by prosecutors.

The reason for prosecutorial affection is illustrated in Andra’s case. Because someone died during one of the Hobbs Act robberies – a violation of 18 USC § 924(j) – Andra was sentenced to life in prison.

But a few years after Andra’s conviction, the Supreme Court decided Johnson v. United States in 2015. Johnson held that the residual clause of the definition of “crime of violence” – the part that said that a crime was violent if it carried a substantial likelihood that physical violence would result – was so vague as to be unconstitutional. Andra connected the dots – like a lot of prisoners did at the time – and figured that if Johnson invalidated the crime-of-violence residual clause for the Armed Career Criminal Act, the similarly-worded residual clause in 18 USC § 924(c) must be equally unconstitutional.

Andra filed a 28 USC § 2255 motion to vacate his § 924(c) and § 924(j) convictions based on his notion that Johnson should logically extend to § 924(c) crimes of violence. Such a § 2255 motion must be filed within strict time limits, such as within a year of the underlying conviction becoming final or within a year of a new constitutional holding that invalidates the conviction. (You can read the limitations in 28 USC § 2255(f)).

Andra was wrong: Johnson did not affect § 924(c) at all. The government argued that Andra’s petition was hopelessly late because it could not rely on Johnson, but instead had to be filed within a year of conviction (and it was four years late for that).

canary230525But Andra was prescient. Johnson may have had nothing to do with § 924(c) offenses directly, but it was the canary in the mine: the Supreme Court over the next few years would extend Johnson’s logic to 18 USC § 16(b) in Sessions v. Dimaya and then to § 924(c) in United States v. Davis. Andra’s petition was held in abeyance by the District Court and later the Fourth Circuit as all of this unfolded. Four years after Johnson, Davis held that the residual clause in § 924(c)’s definition was unconstitutionally vague as well.

Clearly, Andra’s § 2255 motion was untimely when he filed, because Johnson was not a constitutional ruling that would restart Andra’s § 2255 clock. That, as the 4th Circuit put it, made “the key question… whether Davis renders Green’s Johnson-based motion timely” after the fact.

Last week, the 4th said that being early ended up making Andra on time. For starters, it said, “[t]he Davis Court extended the holding of Johnson” to invalidate the “analogous” residual clause in § 924(c). Indeed, in concluding that § 924(c)’s residual clause is unconstitutionally vague, the Supreme Court noted that the clause “bear[s] more than a passing resemblance” to the ACCA residual clause it had struck down in Johnson. Davis thus confirmed what Andra’s motion asserted: that the vagueness analysis in Johnson also called into question the constitutionality of § 924(c)’s residual clause.

early230525The Circuit said the text of § 2255(f)(3) “is silent on how to address this particular scenario, where a petitioner filed a § 2255 motion within a year of a Supreme Court decision recognizing a closely analogous right, and the Supreme Court then recognized the specific right at issue during the pendency of the § 2255 proceedings.” The purpose of the statute of limitations supports extending the limitations period here, the 4th held, because the goal of the limitations in § 2255(f) is to “curb the abuse of the statutory writ of habeas corpus… including undue delays. A petitioner certainly does not contribute to undue delays by filing a § 2255 motion too early. And a petitioner does not abuse the writ by raising an argument, based on very persuasive but non-controlling Supreme Court precedent that the Supreme Court then endorses in a controlling decision.”

United States v. Green, Case No. 16-7168, 2023 U.S.App. LEXIS 11961 (4th Cir., May 16, 2023)

– Thomas L. Root